Citation Codes Equivalent Citations citation codes Attorney(S) Dougherty, Arnold Philipp of Milwaukee, for the appellants. For the respondent there was a brief and oral argument by Alvin L. Zelonky of Milwaukee. See more information ... Smart Summary Please sign up to generate summary. PEDEK, Respondent, vs. WEGEMANN and another, Appellants. This is an action to recover damages for personal injuries sustained by the plaintiff as the result of a collision between a motorcycle operated by him and an automobile driven by the defendant Wegemann. The accident occurred at about 9:30 p. m. on September 15, 1952, at the intersection of North Downer avenue and East Hartford avenue in the city of Milwaukee. Prior to the collision Wegemann was driving north on North Downer avenue and he intended to make a left turn and proceed west on East Hartford avenue. Plaintiff was a policeman employed by the city of Milwaukee in its traffic bureau. On the night in question he was assigned to patrol an area that included the scene of the accident. He had stopped one driver whom he charged with a traffic offense and was giving said driver a traffic ticket when he noticed another violator driving north on North Downer avenue. He mounted his motorcycle and started in pursuit of the second violator who was traveling at an excessive rate of speed. As he approached the intersection of North Downer avenue and East Hartford avenue Wegemann made a left turn and the two vehicles collided. There was a direct conflict in the testimony as to the conduct of each driver at and immediately before the collision. The trial court submitted the issues to the jury by means of a special verdict in which inquiry was made as to the causal negligence of each driver in several respects. One of the jurors became ill and the parties stipulated to proceed with 11 jurors. Later, and while the jury was still deliberating, a second juror became ill and the court declared a mistrial and directed that the case be tried before another jury. At the close of the testimony the defendants made a motion for a directed verdict, which was denied by the trial court. Following the direction of the mistrial, the defendants made the following motions: "1. Renew the motion made at the close of the evidence for a directed verdict. "2. In the event the court shall deny the first motion, the defendants move the court for judgment dismissing the plaintiff's complaint upon its merits notwithstanding the failure of the jury to bring in a verdict." An order was entered on April 12, 1955, denying both motions, and the defendants appealed therefrom. BROADFOOT, J. The defendants first contend that there was no credible evidence in the record from which the jury could affirmatively answer any of the questions in the special, verdict as to the causal negligence of Wegemann. In its memorandum decision the trial court reviewed the testimony and exhibits and determined that the record did present questions of fact for determination by the jury. In view of the fact that there must be a new trial of the issues we do not deem it proper to comment upon the testimony but a careful review of the record indicates that the trial court was correct in denying the motion for a directed verdict. In support of their second motion, the defendants contend that, even though the plaintiff was entitled to have the jury pass on questions with respect to Wegemann's negligence, the negligence of the plaintiff as a matter of law was equal to or greater than that of the defendant. In its memorandum decision the trial court indicated that in its opinion the plaintiff was causally negligent with respect to the speed at which he operated his motorcycle; that although he was operating an emergency vehicle he did not come under the exceptions to the speed restrictions as provided in sec. 85.40(5), Stats., for the reason that his siren was not in operation prior to the collision. The trial court further indicated that the other issues presented jury questions and that if both plaintiff and Wegemann were found to be causally negligent by the jury, the comparison and apportionment thereof was a matter for determination by the jury. We agree. Following the direction of the mistrial, the court impounded the special verdict and it is not part of the record. We have no way of knowing what findings may be made by a jury when the case is tried. The record presented issues of fact to be determined by the jury and this court cannot determine from the record that the causal negligence of the parties was equal or that the causal negligence of the plaintiff exceeded that of Wegemann as a matter of law. By the Court. — Order affirmed.